January 29, 2015
The U.S. Environmental Protection Agency (EPA) has fired back in a dispute with energy industry groups and states over its cross-state air pollution rule (CSAPR), rejecting arguments that the agency unlawfully “over-controls” upwind states according to a January 20, 2015 report from Law 360. The D.C. Circuit nixed the EPA’s cross-state air pollution rule in 2012, but reinstated it in October 2014 after a Supreme Court ruling earlier in the year.
In a January 16, 2015 brief filed in the D.C. Circuit, the EPA renewed its defense of the rule as it gears up for February 25th oral arguments on the suit’s remaining issues. In its brief, the agency denied industry groups’ allegation of “over-control,” saying the claim results from an “unduly restrictive reading of the Supreme Court’s opinion in EME Homer City” and has other flaws.
“The Supreme Court did not hold that CASPR unlawfully over-controls any upwind state that is linked solely to locations that would attain and maintain the relevant national ambient air quality standards (NAAQS) with lesser upwind emission reductions,” the agency’s brief said. “Further, the court recognized that EPA must have ‘leeway’ to balance its duty to avoid ‘over-control’ against its ‘statutory obligation’ to avoid ‘under-control’.”
On Dec. 3, 2014, EPA published an interim final rule with a request for comment concerning the tolling of CSAPR’s compliance deadlines by three years. The interim rule tolls by three years only those dates that have not already passed as of December 30, 2011, the date of the D.C. Circuit’s previous stay order. Therefore, compliance with CSAPR Phase 1 emissions budgets will be required in 2015 and 2016, rather than in 2012 and 2013 and compliance with the initial Phase 2 emissions budgets and assurance provisions will commence in 2017 rather than 2014.
EPA has called the compliance deadline amendments “ministerial” but requests public comment concerning the consistency of the amended dates with the D.C. Circuit’s order. The comment period will remain open until Feb. 2, 2015.
What this means to you
EPA will argue before the Supreme Court in February denying industry allegations of over-control of the cross state air pollution rule. EPA will argue the court has already recognized EPA must have leeway to balance a duty to avoid over-control against its statutory obligation to avoid under-control.
MIRATECH can help
Contact MIRATECH to learn more about cost effective emission solutions for your operation.